SELECT CASES ON CODE PLEADING, BY AUSTIN ABBOTT, L.L. D. Dean of the New York University Law School. Author of PRINTED FOR THE EDITOR, BY N. Y., 1893. PREFACE. σ The experience of a long succession of students in my office long ago convinced me that to get a serviceable knowledge of pleading under the New Procedure requires critical examination of actual allegations, compared both with the facts to be proved and with the principle of law to be invoked. When this has been done, summaries of general principles become intelligible and safe guides, and technical rules are seen to be founded in reason and are easily remembered. This conviction has been confirmed in dealing with the subject of pleading in my class in the New York University Law School; and by the intelligence and enthusiasm. , with which its members have pursued the subject as it has been presented in these pages, which have been distributed among them as fast as printed, each instalment forming the lesson for a day. C The selection has been made chiefly from the recent decisions of the New York Court of Appeals and the Supreme Court of the United States. I have in most cases given the actual pleading which was under discussion in the case, and the opinion of the court below, as well as that of the appellate court. Part of these decisions are reprinted from plates of the "New Cases," kindly lent for the purpose by the publishers, the Diossy Law Book Company. The following statement of the object of the rules of pleading (from the "Brief on the Pleadings ") I repeat here to aid my readers in reviewing the subject in the completed volume. A pleading is at once a notice to the adversary of what he must prepare to meet; a rule of order by which the court may restrain the latitude of contention at the trial; 172373 and, after judgment, a record of justice done which the court may enforce and compel the parties to respect. The rules applicable on demurrer have grown up chiefly in view of the first of these requirements, and turn on the questions: Do the pleadings present a fit question for litigation?. and, Do the incidents of parties, jurisdiction, etc., make this a fit occasion? The rules applicable at the opening of a trial of issues of fact, before going into evidence, assume that the present is a fit occasion, but leave open the questions: Whether the pleadings present a question within the jurisdiction of this court? and, Are all indispensable parties before the court? The same stage of proceedings may raise the further questions: What mode of trial do the contents of these pleadings call for? and, In what order shall the parties and issues be heard? The opening by counsel, and the resulting reception of evidence, introduce such modification of this aspect of the case as is required by the practical construction. which the parties, by their contention in the presence of the court, put upon the language in which they have framed the issue. The court still holds them to questions within the general scope of the pleadings, but disregards technical objections which the objector by his own course has already disregarded. The course of the trial, proceeding on this relaxation. of the original rules, frequently obscures the lines which strict adherence to the pleadings might have preserved; and when the time for submission of the cause arrives, the question whether each party gave his adversary fair notice of the question which they have actually tried has gone by, for each has taken his part in trying it; and the time for applying the rules of order as to the method of trial has also gone by; while the question what sort of judgment can the court properly render, and perpetuate on its record, and enforce by its process, on the foot of these pleadings, comes into prominence. These distinctions must be borne in mind by whoever would master the modern principles and rules of pleading. AUSTIN ABBOTT. NEW YORK UNIVERSITY, May 13, 1893. CONTENTS. PAGE 2 Allen v. Patterson, 7 N. Y., 476, Keteltas v. Myers, 19 N. Y., 231, Chapman v. Forbes, 123 N. Y., 532, · Eggers v. Klussman, 16 Abb. N. C., 226, Bank of British North Am. v. Delafield, 126 N. Y., 411, Blank v. Hartshorn, 37 Hun, 101, Albany & Rensselaer Co. v. Lundberg, 121 U. S., 451, Blanchard v. Jefferson, 28 Abb. N. C., 236, Conkling v. Gandall, 1 Abb. Ct. App. Dec., 423, |